Jephson v. Riera (United Kingdom)

The Reverend ~0~~ J ~ ~ ~ S O ~ and Others, Trustees under the Will of Sir R I C H ~ l ~ ~

M O U ~ T N E ~ J E P ~ S O ~ , - ~ ~ e ~ Z u ~ ~ s ; F ~ ~ A N C I S ~ A R I ~ R A , - ~ e ~ ~ o ~ ~ ~ e ~ ~ *

Where by a charter under the Great Seal instituting a Court in a conquered

colony it is provided that the laws of England shall be the measure of justice

between the partiess, and the Court is empowered to hold pleas of what nature

and kind soever, and to issue warrants of execution for putting parties into

possession under its decrees ; Held, that the ~ n g ~ ~ s h law of real property was

substituted for the ancient law of the conquered colony, and that a widow

was entitled to dower out of lands of her late husband accordingly r3 Knapp,

151, 153, 1541.

The law of a conquered country may be altered by the King, by proclamatio~ or

letters patent under the Great Seal, and not solely by means of an Order in

Council [3 Hnapp, 152, 1533,

An inhabitant of an island ceded by Grea$ Britain, who, im~~edia te ly after its

cession, comes over to England, and, finding the climate not agree with his

health, returns to the ceded island, in which he had left his family, and resides

with them there for upwards of six years, and then emigrates with them to

another country under the government of Great Britain, retains the character

of a British subject; and one of his children, born after the capitulation of

the island, and before its final cession by treaty, is not an alien p3 Hnapp,

1491.

Quaere. Whether an appellant who wishes to avail himself of evidence not pro-

duced before the Court below, must not, either in his petition of appeal, o r

by a special petition for that. purpose, pray that it may be received before the

Judicial Cornmitt# t [3 Knapp, 1361.

The ~ ~ p o ~ d e n t , who was the widow of M~chael Riera, h r o u ~ h t a suit in the

Supreme Court of Gibraltar against the ~ppel lan ts for dower out of certain lands

and houses in Cornwall's-lane, in Gibraltar, which. her hwband had sold during her

coverture to the late [131] Sir Richard Mountney Jephson, and conveyed to him by

a deed-poll, dated the 31st of August 1809, to which she was not a party. The

Supreme Court, on the 10th of July 1833, made a decree, by which it declared the

respondent entitled to her dower, and condemned the appellants in costs. From this

deeree the present appeal was instituted.

The principal point which appeared to have been ~nsisted upon in the Court

below by the a p p e l l ~ n ~ was, that the ~ e s p o n ~ e n t was an dien, and therefore not en-

titled to dower : the point which was mainly relied upon by their counsel before the

Judicial Committee was, that the law of dower did not extend to Gibraltar. It was

also contended by them, that the respondent's husband, as a ~ ~ a n - c a t ~ h o l ~ c , could

not hold lands in Gibraltar.

The proof of the respondent being a British subject rested, i n the Court below,

upon a cer t i~eat0 of her baptism on the 10th of June 1782, in the island of ~ i n o r ~ a ,

as the daughter of Don Francisco Walls, and Teresa Dex8 his wife, and a certificate

of the baptism of her father also in Minorca on the 28th of September 1729, and on

the evidence of two witnesses, who deposed that she left Minorca, together with her

father and all his family, within eighteen months after the cession of that island to

* Present : The Victj..Chancellor [Sir hncelot Shadwell], Lord Commissioner

Bosanquet, Mr. Baron Parke, the Chief Judge of the Court of ~ankrup tcy [The Hon.

Thomas Erskine].

t The only other casea in which evidence not before the Court below has been

adduced before the Judicial Committee are, Caaepa v. Lla&s, vol. 2 [Knapp], p. 277,

in which i t was rejected, and ~ ~ ~ ~ ~ ~ i e ~ - G e ? ~ e r a l v, ~ f e ~ ~ ~ e ~ o ~ ~ , ib. 330; in whi& 8

special. petition for leave to produce it was presented, and an order obtained for that

purpose.

598

[May 21, J U I ~ 3,183'jl.

~ - - _ I _ _ " ~ ~ - ~ . ~ ~ - - - " -- --

Spain, which was the period assigned by the 5th article of the Treaty of T7ersailles

for the em~gration from it of British sub~ects. An appointment, dated the 16th of

April 1791, of her father to be preceptor of ~ a n g u a ~ s to the garrison of Gibraltar,

by the ~ o ~ e r n o r , Sir ~ o b e r t Boyd, was also put in, in. which there was a recital that

he had been bora under the British G o v e r ~ e n t a t ~ ~ n o r c a , and that his father and

relations had, to the Governor% certain knowledge> suffered ~ o n s ~ d e r a ~ l e loss of

property, upon the [132f cession of Minorca, front their alleg~ance, zeal and ~ d e ~ ~ t ~

to the British Government.” Upon these facts the assessors found a special verdict,

(‘ that Peter Walls left Minorca previously to the expiration of the period of pro-

tection ~en t joned in the Treaty of Versailles *, with the intent~on of never return-

ing thither to make it his place of domicile, and that from the time of his so leaving‘

Minorca he never did return to it.’>

Before the J u d ~ ~ i a l ~ o m m ~ t t e e , the appellan.~ produced, and printed as part of

their case, three certificates, one of the baptism of a son of the respondent’s father

and other, a t Port ~ a h o n in ~ i n o r c ~ , on the 1st of July 1784 (to whom tzhe re-

spondent’s ath her was sponsor}, and two others of hhe baptis~is of children of her

father and mother in 1787 and 1789, and a certificate of the marriage of one of their

children at the same place in 1784 ; and also a memorial to the Lords of the ~ r e a s u ~ ~

in. 1807, by the responde~t’g father, in which he stated, that by the capture of

~ ~ n o r c a he had been deprived of his situation under Government, of French prc-

ceptor to the officers of the garrison there, and that sooan after that time he went t o

London, in the endeavour to procure sdme means of maintaining his family, but not

finding the climate suitable to his age and constitution, he had returned to Minorca,

where he r ~ a ~ n e d till ~ e p t e ~ ~ r 1790, when he left it, and obtained in the following

year the situation of preceptor of languages a t Gibraltar, of which he was deprived

in cons~uence of his absence a t ~ i n o r c a in 1799, where he held a situation during

its temporary r ~ c c u ~ a t i o n at that time by the British ~overnment.

The two latter points depended upon the tenure of the property. me title to

them had been proved as follows:

f1331 A deed of change was proved, which was d&d the 2d of January 18041.

between the offioers of His Majesty% Ordnance a t Gibraltar, acting under an a p

pointment, of the ~ a s t ~ r - g e ~ ~ r a l of the Ordaanoe, and Patricio Riera, the father of

the respondent’s husband, by which the oEcers of the Ordnance ‘‘ granted, assigned,

transferred and set aver unto the said Patricio Itiera, his heirs and assigns, to

hi8 and their O W K ~ proper use for ever, a11 the property in quest~on, subject to a

quibrent of a dollar and 10 reals a month to His Majesty, in exchange for certain

other houses and lands.” Patricio Riera, died, and left by his will all his property

to the respondent’s husband, Micbael Riera, who by a deed dated the 31st of August

1809, indorsed on the deed of the 2d of January 1804, in conaidera~ion of 33,000

d o ~ ~ ~ r s , ‘( ~ r ~ ~ n ~ ~ d , ~ a r g a i ~ e d , sold, ass^^^ and set over all his right, title and

i n ~ r e s t in the w ~ t ~ ~ ~ - n & m ~ premises unto Sir R. M. ~ e p ~ s o n , his heirs, ~ x e c u t o r ~

and a d ~ i ~ i 8 t r a t o r s , fox ever,”

To prove that the property held under this title wtbs not of th5 nature of axi

~ n g ~ ~ s ~ f r ~ h o l d , the a ~ ~ ~ a n t ~ sbted the fo~~owing facts in their casg which, as

f a r as r ~ a . r d e d the Orders in Council and documents, appwr to be correct.

“00a the conquest of G i b r a l ~ r by the English, it appeam that the oid in-

h a b ~ t ~ ~ t s almost univ~rsally abaiidoned the place, and for some years, nothing in

the shttpe of civil government existed; landed property was held on a kind of

s u ~ e r a n c ~ , or a t the will of the Govern~ent (see the opinion of the ~ t t o r n e y and

~ o l i c i t o ~ ~ ~ e n e r a l , on the state of Gibraltar, dated the 14th December 1722, in

Chalmers’s Opinions, vol. 1, pp. 177 and 181). In the year 1749 General Bland was

e1343 sent out u.8 Governor and Commander-in~hief, and was invested with various

powers and a u t ~ o r i t i ~ to inquire into the titles to lands in G~braltar, and to

execute grants thereof to ind~~iduals , whenever a fair apparent title could be

inade out. In virtue of this c o m ~ n ~ s s ~ o ~ , General land, in the name and on behalf

of His Majesty King George the Second, executed grants of th0 lands and teue

ments within the Iinrits of the town and garrison to various persons; some for

estates of ~ I ~ ~ ~ e r i t ~ n c e , other for lesser estates; but all subject to the p i ~ y i ~ ~ e ~ t of

{* 3rd Sept. 1783, arts. 4, 5, 12.

599

*

*111 -- -. “ ~ ~ _ I - - . --- -I.._- l__l__ “ ” _ _ _ _ I

See 3 St. Tr. (N.S.), 592.3

I11 KNAPP, 156 JEPHSON 2’. RIERA [I8351

certain q u i ~ r e n t s to His Majesty, his heirs and successors, and subject also to

various conditions, which were as follows: viz., that on the d a t h of the grantMS

the lands should not descend to or be enjoyed by any other than natural-born pro-

testant subjects d His Majesty, eacept such c h ~ l d r e ~ o r heirs of the grantees, or

of their Aei.t.8 or ass@fns, as s h o ~ ~ ~ be ~ ~s a-nd ~~~~~~~~~ of ~ ~ ~ ? * a ~ ~ a ~ ~ that

the grantees or their heirs should not alienate without the permission of the Gover-

nor ; that when sold and when conveyed, the lands should be mld and conveyed to

no persons or person other than natural-born protestant subjects of His Majesty;

that every deed of sale should be confirmed by the Governor, under his hand and

seal; and that in case of the breach or non-performance of the conditions, the lands

should become absolutel~ forfeited to the Crown.”

“ In process of time mtmy forfeitures accrued, and many confirmations or renewals

were made, or assumed to be made, and great daubt and uncertainty prevailed

respecting the title to lands in Gibraltar, to the disquiet of the inhabitants and to

the great loss of the Crown. To remedy this sta.tts of things, His Royal Highness

the Prince Regent, by an Order in Council [I351 dated the 13th of AugurJt 1817,

authorized the Governor to issue a commission, directed to five persms, for

settling the titles to lands in GibraItar. The commissioners w0re to cause a survey

to be made of all the lands the property of, or held under, the Crown, and to receive

all claims for or respecting the same, and to report upon such clainis;

and they were directed to allow such claims, where the tztles were

othei.coise lawful, although there might have been a forfeiture under the

grants from the Crown, or by reason of the claimants or their predecessors not

having been natural-born sub‘jecta, or nskural-born protestant subjects of His

Mirajesty ; but so always that no claimant shovuld be admitted who waa not a natural-

born subject, or was not duly registered a s an inhabitant. ?Then the comton~i~sioners’

ri.port should be approved, the Governor was authorized and required by letters

patent to grant the lands to the rwpactive claimants, their heirs or assigns, dig-

charged from all previous forfeitures, but subject t.0 new quit-rents, to be 8scer-

tnined and fixed, as proper to be paid for the same.”

“ By another Order in Council, dated the 19th of March 1819, certain provisions

of the preceding order were altered or amended; and all natural-born subjects of

His Majesty, of whatever religious faith, were empowered to acquire and hold

lands in Gibraltar, as fully as i f they had been nat,ural-born protestant subjects.”

“By letters patent, bearing date the 17th of June 1820, his Excellency the

Lieutenant-Governor, by virtue of and according to the before-mentioned Order in

Council, and pursuant to a report of the commissioners, granted and confirmed the

property comprised E1361 in the deed of exchange of the 2d of January 1804, and

thereby conveyed to Patricio Riera, to Sir Richard Mountney Jephson, his heirs

and assigns for ever, freed and discharged from all manner of forfeitures, tts set

forth in the Orders in Council, but subjwt to a quit-rent of me dollar per month.”

Lushingtoton (Dr.), and Campbell, for the Appellants.-Whatever doubts may

have existed in the Court below, it is perfectly clear, fr&m evidence now for the

first time produced before the Judicial C o m ~ ~ t ~ , that the res~ondent remained

an inhabitant of the island from the time of its cession ta France in 1784, until

the year 1791.-[Bickersteth here objected to any evidence being received which

had not been brought before the C w r t below.]-The ~Tic%Chance~or : “ The petition

of appeal does not allude to any fresh evidence^'^-^^ Judic~al Committee, by the

8th section of the Privy Council Act 13 and 4 Will. IV. c. 411, havc the express

power given them of examining witnesses as to facts, although no sueh witnesses

niay have been examined, or no evidence may have been given, on any such facts in

any previous stage of the matter.” Surely the present must be considered a case for

the exercise of the Committee’s power, when it i s apparent, from the documents

now produced, that both the witnesse~ in the Court below, who deposed that the

respondent and her father left Minorca immediately after the Treaty of Versailles,

nrust have stated the very reverse of the truth. It would be most unjust that the

appellants should be deprived of a portion of their property because they were not

provided in the Court below wit.h 11373 evidence now for the first time procured

from the t w o foreign countries to Gibraltar, of England and Minarca, in order to

contradiot what they c d d not have surmised would have been sworn to.

It is now well e s t a b ~ i s h ~ by the cases of Doe v. ~ c ~ ~ a ~ (2 Bar. and Cres. 179)

600

I11 KNAPP, 138 JEPHSON v. RIERA [1835]

and Doe v. illulcaster ( 5 Bar. and Cres. 771), that where a country is ceded by

Great Britain, the children of those inhabitants who choose to remain in it after

its cession, and to become the subjects of a foreign power, lose all title to the

character of British subjects. The respondent’s father, who never removed his

family until six years after the time fixed for the emigration of British subjects

from Minorca, and who returned himself there after the short absence of a year,

must be considered as having become a subject of the King of Spain. If he had

died during that period, he would have been held to have been domiciled in Minorca,

and the domicile of an infant, as the respondent was, must follow that of her

parents (Pottingel, v. Wightmnn, 1 Mer. 67). The national character of Minorca,

indeed, would relate back to the time of the capitulation of the Fort of St. Philip

and surrender of the island on the 5th of February 1782 ; so that the respondent

was an alien a t her birth in the following June. Being an alien, therefore, she is

not entitled to dower in any part of His Majesty’s dominions.

Were, however, the respondent a British subject, she would have no claim to

dower. The property in question is held by the appellants, under the grant of the

11th of June 1820, and not under the conveyance from Michael Riera of the 31st

of August 1828. Riera was, [I381 in fact, incompetent to take lands in Gibraltar

under his father’s will, for he was a Roman-catholic.

[The Committee then inquired whether Michael Riera was not a native and

inhabitant of Gibraltar, and the answer being that (‘ he was,’) they expressed their

opinion that he would consequently have come within the exception in General

Bland’s grants, if he had held under one of them, but that he had derived his title

from the deed of the 2d of January 1809, in which there was no condition whatever

as to religion.]

Gibraltar has always been considered as a mere fortress, and not as a planta-

tion or colony; Nemesis (Edwards, 51), Lubbock v. Potts (7 Est, 455). In the

Report, in 1722, of the Attorney and Solicitor-General, on the King‘s power to

establish a civil jurisdiction in it (1 Chalmers’s Op. 169), the property in lands

and houses is described as precarious, and that some settlement ought to be made

of it. In the grants which have been subsequently made of it by the Crown, no

mention is made of the laws by which the descent and tenure of it are to be

governed.-[The Vice-chancellor [Sir Lancelot Shadwell] : ‘( The grants appear

to be in fee simple, subject to a quit-rent.”]-Whatever form they may be in,

they nowhere specify that the rules of English law, applicable to freehold lands,

are to regulate the descent of the property included in them. The words of con-

veyance, indeed, used in all of them, are not such as are used to convey an English

freehold interest. According to the rule now well established by the determina-

tions of the Privy Council, reported in 2 Peere Williams, 75, Campbell v. Hall

(Cowper, 204; Lofft, 655), Attol-ney-General v. Stewart (2 Mer. l43), the law of the

conquered country must [139] remain, except so far as it may have been altered

by an Act of Parliament or Order in Council. No alteration whatever has been

made in the law of real property a t Gibraltar, which therefore muat be regulated

by the law of Spain. It is true that the charters of justice to Gibraltar direct that

in civil causes the law of England shall be the measure of justice between the

parties, but those expressions do not relate to real property.-[By the Committee :

“ Do you contend that the real property of an intestate descends to the children

equally in Gibraltar, according to the law of Spain?” (see Johnson’s Institutes of

the Law of Spain, book 2, tit. 4, p. 128, of edition of 1825)I-It certainly appears

to have been established by custom, that it descends to the eldest son, as in England;

but there is no evidence of any similar variation from the Spanish law having

been established as to dower. If it were, the consequences would be to prevent any

alienation of his property by a married man, for no method would exist of barring

it. Where could the writs of covenant be sued out for a fine, or how could the pro-

cess of a common recovery be carried on in Gibraltar?-[The Vice-Chancellor [Sir

Lancelot Shadwell] : (( Similar arguments were pressed on Lord Lyndhurst, in the

case of Freernnn v. Fairlie,” but he decided that real property in Calcutta was

* The judgment of Lord Lyndhurst in Chancery, on the 17th of November 1828,

The case will be reported by Mr. is printed in Mr. Grant’s Privy Council Practice.

Russell [see 1 Moo. Ind. App. 305 ; 2 St. Tr. (N.S.) 10001.

601

111 KNAPP, 3.44) J E ~ H S O ~ v. RIERA [I8351

governed by the ~ i ig l i sh law,”ll--In that case, the Master had found that the lands

and houses in question were freehold of inheritance. Here there is no finding

or evidence that the law of Gibraltar had been altered by the King, or even varied

by custom in this respect.

~~~~~ ~ ~ c k e r s t e t h (K.C.1, and Cleasby, for the ~espondent.-~f documeltts

are to be for the first time adduc~d before the Judicial Conim~~tee, which never

have been in evidence before1 the Court below, it will sit not as a court of appeal,

hut as a court of original jurisdiction of a very defective description, for from

your decidon on a new case there can be no appeal, and no opportun~ty for a second

cons~derat~on. If parties are, however, to be a t liberty to mme here with new

e y ~ ~ e I i c ~ , some notice o u ~ h t to be given to their oppor~ents of We facts they wish

to proye, or of the documents they desire to addwe; sonie reason or expla~~at io i~

ought to be afforded to the Court for their delay or inadvertence in not b s i ~ ~ ~ n ~

forward their whole case before the inferior jurisdiction. Here no petition has

been presented to the Court, no notice has been given to the party respondent, and

the appe~~ants put forwasd in their printed case, for the first t h e , documents

unheard of in the Court below, and not proved in the rtgular mode in which docu-

ments ought to be proved in the Court h e m

It i s to be. hoped that the ~ o n i ~ l i t t ~ wi l not pay any a ~ t e n t ~ o n to this evidence.

If, however, it were to be reeeiived, t,he facts which it ~rofesses to prot-e would no$

deprive the r e ~ p o ~ ~ d e n t of her title) of a British subject, Surely the case o f a father

who leaves an island immediateIy upon i t s cession to a foreign po~ver, who returns

thither after a year’s absence, and then finally quits his b ~ r t h - p ~ a ~ e aft r a few

years? stay, on r ~ c e i v ~ n g an a p p o i n ~ ~ e n ~ from t,he brit is^^ ~ o v e r n m e n t ~ cannot be

d i s ~ i ~ i ~ ~ i s ~ ~ ~ from that of Dot: v. ~ ~ ~ i ~ ~ ~ . ~ ~ ~ ~ [5 B. and C, 7711, in w h ~ c ~ ~ Ns. Aucb-

muty was held, under very nearly the same c i rcums~nces~ to have neser f o r ~ c i ~ e d

the [lal] character of a British subject. The treaty of 1784 has no r e l ~ t ~ o n what-

ever back to the capitu~a$~on of Minorca; eyen i f it had, a c c o r d ~ n ~ to the old

rule of ~ ~ ? ~ ~ ~ ~ ~ s ~ u ) ~ c e ~ ~ ~ p m nato ~ ~ ~ z ~ r , the r ~ p o n ~ e i t , who was born only four

~~n~~ ~ t ~ r ~ ~ r d s , might elsirn the c h a r a c ~ ~ r of a British subject. All the dicta

of the Judges, in C o l Z ~ ~ ~ ~ ~ u ~ v. Pace (1 Ventirv 413 ; 1 Sid. 1931, end Cahin’s (7 Co.

Rep. 12’) case, are in her favour, and no authority ~ h a ~ e y e r can be c i ted in contra-

diction of her rights.

With reqect to the objection, that dower does not exist atr Gibraltar, it i s

rather e~traordinary that it was not taken in the Court below, who must be pre-

sumed to know the tenure of lands in their own colony; but i t surely cannot be

argued that dower, by the law of England, does riot attach to freehold lands. The

p r o ~ e r t y in question is expressly conveyed to “Patricio Riesa, his heirs and

assigns, to his and their own proper use for ever.” These words would convey :I

f~eeliold by the ~ n g l ~ s h law, and the ~ ~ ~ g l i s h law was, by a charter under the Great

Seal, granted to a Court of ~ u d i c a t u r ~ ~ t ~ a b l i s ~ e d th re in the 13th Geo. 2, direcred

to be the measure of justice. between the parties in all the cases before them. Ever

since that t he , the law of ~ n g l a n d has been consider~d as ~ ~ b l i s ~ e d in Gibraltar ;

and it lies upon the other side to prove aay erceptiori fronz its general rulw. The

a r ~ u i ~ ~ e n ~ s that have been pressed, as to the d ~ ~ c u l t ~ of barring o r assigning dower,

can have but little weight; for the q u ~ t ~ ~ n is not ~ ~ e t l l e r it, can be barred or not,

but. whether it exkta. It cannot be doubted, however, that. there are modes by

which dower can be barred in [I. G~braltar, as it can in other colonies; and

even i f it could not, and every woma~t on her marriage was assured of an in-

defeasible provision out of her husband’s landed property a t his denth, Were is

nothing so absurd or ~mpol i t~c in such a law as ought to lead a Court to doubt its

existence.

~ u ~ h i n ~ t o n (Dr.1, in r e ~ ~ ~ . - ~ h e n a charter of justice was first gzvanted to

G~braltar, the laws & ~ ~ t ~ n g real p r ~ p e r ~ y in that place mu& have been the fa.;vs

of Spain, No part of any of those charters affect to alter those laws, and rhe

direct~on that the laws of England should be the measuse of just-ice between :he

parties, coufd on$ be intended to questions upon which those laws would apply,

All the text-wr~ters mention Acts of P a r ~ i a ~ e ~ ~ t and Orders in Counril as the only

odes by which the King can co~istitutiona~ly change the laws of a con~uered country*

It would be improper that B n~onasch should do so without either the assent of his

602

JEPHSON ZI. HPRA [ 18351 111 KNAPP, 143

Parliament, or the concurrence of his respons~ble advisers. All a l t e r a ~ ~ o ~ i s that are

now from time to time made in the laws uf British Guiana, Trinidad and St.

Lucia, are announced by Orders in Council. If the lam of dower was ever intro-

duced intu Gibraltar, it would be easy for the appellant8 to produce pxecedent-s of

its appl~cation, which they have not done. If, as we contend, this is t.hs first cnse

in which it was mer claimed, what could be so injurious as a decision in favour of

the responden~, which would shake the titles of all lands that have been p~irchased

from married men in Gibraltar? As to the national character of the responde~it,

even admitting her to have been born [I&] a British subject, she lost that character

by remaining with her parents in Minorca, and thus becoming a subject of the

Eing of Spain.

At the conclusion of the a r ~ u ~ e ~ t , Mr. Bickersteth mentioned the case of

Beltnbnr v. Smith.," in which it [IN] was decided by the Privy Council, on the 11th

of June 1812, that houses and lands in Gibraltar, held under [I&] a grant con-

firmed by General Bland, were freehold, and therefore d e s c e n d ~ to the heirs of

* [ B ~ ~ A ~ A I ~ 2:. SMITH.]

~- l_l__l-_-I- -

Freehold lands in G~braltar are not assets for the payment of simple contract

The f o l l o ~ ~ ~ n ~ is a short s t a t e ~ e n t of the principal facts of this case, taken

from the printed papers on the appeal :

" Elijau Benatar, a Jew merchant at Gibraltar, died in October 1804, intestate,

and owing very large siniple contract, hut no specialty debts. Be left his two

dauehters, the appellants, Simha and Sarah Benatar, his heirs-at-law. Letters of

ad~iinistration of his estate were granted to four of his creditors and his nephew,

Judah Benatar. The administrators sold a real estate beloaging to Elijau Benatar

to the respondent, John Smith, and conveyed it to bin? on the 20th of May 1805;

but Judah Benatar did not execute the conveyance. The appe~lai~ts, I>? their

guardian, h d a h Benatar, filed a plaint in the Court of Civil Judicature, on the

8th of July 1807, €or the recovery of this property, against the r c s ~ o n d e ~ ~ t , who de-

fended the action. The appellants, to prove a title to the premises, qroduced a de-

cision of a Court of Inquiry, held on the 22d of August 1749, stating that '' Mr.

Thomas Tiernay appeared and cfaimed his present dwelling-house on the south side

of the Parade, purchased by him for &loo0 sterling of Lieutenant Wi l~ ia~ns and his

wife, daughter of James Arget-, deceased, and repaired by him at great expense

since ; and having produced a regular conveyance, it was the opinion o f the Court

that he had a just, title, subject, to a ground-rent of four dollars per month;" and

R confirmation of this decision, under the hand and seal of General Bland (see

m t e , p. 134). They then produced the books of the collector of revenue, by which

;t appeared that the ground-rent had been paid by a person of the name of Salvador

Causino, in 1758; @nd a conveyance hy bargain and sale, from Mo~oses Causino,

stating himself to be the son of Salvador ~ a u s i n o , to Mr. V a u ~ l ~ a n . on the 24th of

September 1788 : and another conveyance by bargain and sale, from Mr. Vauqhan

to the appellant's father, dated the 18th day of June 179%

The Judge and the assistant members of the Court below differed in opinion on

this case. One of the assistant members held, that nothing appeared to show the

pxeinises to be freehold, and the appellant^ to have been barred by laches. The

other assistant inenibors held, that as it was doubtful how far tlte Iam of the

mother country extended to Gibraltar, the adm~n~strators were, on ~ e n e r a ~ prin-

ciples of equity, entitled to sell the property for payment of debts, and that the

appel~ants were barred by their laches. The Judge dissented, on the ground that

the land was freehoId of inheritance. The majority of the Court being thus against

the appellants' claim, it was dismissed with costs.

The appellantg appealed from this drscree to the Court of Appeal then existing

at Gibraltar, under the now repeaied charter of the 1% Geo. 2 : that court also

dismissed their claim, on the ground that the property was not freehold of inheri-

tance.

The reason annexed to the a p p e ~ ~ a n t s ~ case was,

" BeGsuse Elijau Benatar must be considered as seised in fee of the tenement in

debts.

From this decree they appealed to the King in Council.

603

I11 KNAPP, 146 3EPHSON 21. RIERA [1835]

an ~nsolvent, [I&] and could not be sold by his administrators for payment of his

simple contract debts.

Chief Judge of the Court of Bankru~3tcy [The Hon. Thomas ~rs~iiie].--This wa8

an appeal from a judgment of the Supreme Cou& at Gibraltar, in a suit for dower

instituted by Francisca Riera, the widow of Michael Riera, in respect of certain

land and houses within the town and fortress of Gibraltar, of which her husband

Lad been during her coverture seised in fee simple.

The property in question had been, in the year 1804, conveyed by the ofEcers of

the Crown to I'atricio Riera in fee, and upon his death, his aon, Michael Riera,

then the husband of the plaintiff, entered into possession as his father's heir;

and afterwards, in the year 1809, sold and conveyed it to the late Sir Richard

~ o u n t n e y Jephson, Barb., his heirs and assigns, for ever.

Sir Richard hlountney Jephson died in the year 1824, having by will devised the

property in question to the appel~ants, as trustees, for the benefit of his fam~ly.

In the year l828, Michael Riera, the pla~ntiff's husband, died; and in 1833 &e

widow commenced her suit for dower.

At the trial, the only ground upon which the p la in-~~4~]- t~f f7s claini ~ p ~ e ~ r s to

have been resisted by the appellants was, that she was an alien, and as such not

entitled to dower. It appeared by the evidence in the cause, that the plaintiff was

a native of ~ i n o r c a , the daughter of Peter Walls, also a native of that island;

that a t the date of her father's birth, i n 1729, the island belonged t o the English

Crown, and that she was born in 1782, the year before Minorca was, by the Treaty

of Versailles, ceded to the Crown of Spain : and the point insisted upon by the d e

fendants below appears to have been, that after the cession of the island to Spain,

Peter Walls and his family adhered to the Spanish Government, and thereby

abandon^ their a ~ l ~ i a r i c e to Great, Britain, and became Spanish subjects, and

aliens to this country. To rebut this objection, it was proved by the plaintiff; that

soon after the cession, and before the expiration of the time allowed by the treaty

for the removal of British subjects and their property, her father, Peter Walls,

who was much attached to the English Government, left Minorca for the purpose of

seeking Fonie en~ployment in England, and (accord~ng to the evidence of some of

qumtion a t the time of his dying intestate; and being so seised, it descended ta

the appellaiits, his ~~eirs-at-law ; i n a s ~ u c h as what is the law in England must be

the law of Gibraltar, for the charter of his late Majesty King George 2 , for erecting

a Court of Civil Judicature at Gibraltar, ordains that the laws of England should

he the measure of justice between all parties.

'' SAXUEL ROXILLY.

'' BASIL MONTAQU.''

The reasons annexed to the responde~t's ease were,

1st. (' Because, from the several ~ndentures in proof before the Courts a t Gib

raltar, those Courts ought to presume Salvador Causino's interest to have been

leasehold and not f~,eeho~d; and therefore the respondent has a good title to the

premises in dispute. Admitting the possession of Salvador Causino, the father,

to have been proved, the respondent contends that no presu~pt ion of his having

l a d a freehold can arise in this case, inasmuch as Causino w a ~ a Jew, and no Jew

could, at ihe time of the supposed conveyance to Causino, hold freehold property

in ttie garrison of G~braltar. The Court could therefore not presume his interest

to be freehold ; First, because, according to the known maxim, every thing shall

be presumed to be done according to law, and not contrary to it. Secondly, be-

cause it is not probable that Arget and Tierney would have made, or Causino have

accepted, such a conv~yance as would have been a forfeiture of the estate; and,

T'iirdly, because, had such a forfeiture been committed, it i s reasonable to suppose

that the Crown would have taken advantage of it. It is, therefore, more cons~nant

1 0 f R w and to reason that the estate should be presumed to be leasehold.

Zd. cc Because, even admitting the title of Salvador C"ausinob to have heen free-

hold, tire appeIlants have failed in r n a k ~ n ~ out their title thereto ; and it was in-

cumbent on them, in analogy to the law of England in actions of ejectment, to

prore t le i r title tsi be good, and not that of the respondent to be bad. The re-

spondent submits that they have failed in giving such proof; First. because there

is nil evidence that Moses Causino was the heir-at-law of Salvador Causino, which

604

JEPHSON 'U. RIERA cl8351 I11 KNAPP, 148

the witnesses) never afterwards returned to Minorca; that in the year 1790 he

came to settle i n Gibraltar, and soon afterwards removed the plaintiff and the rest

of his family to the same place, where they continued to reaide till the plaintiff's

marriage, in 1799, with Michad Riera, a native of Gibraltar.

Upon this evidence2 which was uncontradicted, the assessors of the Supreme

Court found specially, " that Peter Walls left Minorca previously to the expiration

of the period of protection mentioned in the Treaty of Versailles, with the inten-

tion of never returning thither to make it his place of domicile, and that from the

[148] time of his so leaving Minorca, he never did return to it." Upon this find-

ing, the Court adjudged that the plaintiff was entitled to her dower in the pro-

perty in question, and decreed the same to her with costs. Against this judgment,

the trustees under Sir R. M. Jephson's will have appealed, and they seek to have the

judgment reversed, not only upon the ground upon which they rested their defence

at the trial, but also upon two other objections, which do not appear to have been

raised in the Court below; namely, First, because the right of dower does nut

attach upon lands in Gibraltar ; and, Secondly, because Michael Riera, the plain-

tiffs husband, through whom the right is claimed, was a Roman-catholic, and there-

fore incompetent to hold lands in Gibraltar by any legal title: and they endeavour

to strengthen the objection relied on at the trial, by asserting that the special find-

ing of the assessors was contrary to the fact, and by undertaking t o prove that

Peter Walls continued to reside in Minorca after the time allowed by the treaty,

and that after a temporary absence he returned to his domicile there, which he had

never abandoned, and which he retained under the Spsnish Government till 1790,

when he removed to Gibraltar.

The second objection, which was founded upon the Ianguage of certain grants

of land made by Gayernor Bland about the year 1749, was disposed of during the

a r~ument , First, on the ground that Patricio Riera's title was not derived from any

grant made by Governor Bland; and, Secondly, that if it had been, Michael Riera,

ought to have been shown, if Salvador Causino was seised in fee: and there has

not k m any possession for twenty years since Salvador's death, bp Noses, o r any

other person, so as to create another seisin in fee. Secondly, because Salvador

being a Jew, the conveyance to him from Arget and Tierney was a forfeiture to the

Crown; and though the law of England would require an office of entitling under

the Great Seal, in order to divest the estate of the purchasers, ?et such technical

forms are not required in a colony o r conquered place such as Gibraltar, where the

laws of the mother country are

and such a proceeding ie neither applicable nor practical a t Gibraltar. The re-

spondent therefore submits, that hy the alienation to Causino, the estate was ipso

facto vested in the Crown.

3d. "Because, if technical forms in the conveyanc~ of landed property are

requisite in Gibraltar, ac9 far as the nature of the place will admit, then neither the

bargain and sale from Causino to Vaughan, nor from Vaughan to Benatar, con-

veyed a freehold property, ae no public act analogous to enrolnient appears to

have taken place.

~ - - _ I I I I__ - ~ _ _ _ __ I" -

'' ROBERT DALLAS.

'( J O H N &CHARDSON.

The report of the Conunittee to whom the case was referred is dated the 22d o f

May 1812 ; and after setting out the petition of appeal, states '' that they did, on

the 23d day of May 1811, take the1 said petition and appeal into consideration, and

heard counsel on both sides thereupon ; and the parties having since obtained and

submitted to their Lordships certain documents from Gibraltar, the Lords of the

Coninlittee this day resumed the consideration of the said petition and appeal;

and having again heard counsel on both sides, their Lordships agree humbly to

report as their opinion to your Royal Highness, that the decree of the Superior

Court of Judicature at Gibraltar, of the 6th of July 1808, affirming the decree of

the Civil Corrrt of the 6th of May 2808, should be reversed, and that it should he

directed that the premises in question be delivered up to the appellants, and the

rents and profits thereof accounted for to them.

605

111 KNAPP, 149 JEPHSON v. RIERA p 3 5 1

as a native inhabitant of Gibraltar. though a Roman-catholic, was expressly ex-

cepted from the restraining clause in those grants.

Their Lordships have considered the two r e ~ a i n i n g [I491 objections, and are

of opinion that neither of them afford any ground for distui-biiig the judgment of

the Court below. As to the objection to the status of the widow as an alien, their

Lordships are of opinion that if the appellants had established, at the trial, the fact

upon which they now rely, unless they could have satisfied the assessors and the

Court that Peter Walls retained his doniicile in Minorca with the intention of

transferring his allegiance under the cession of the island from the Crown of Great

Britain to the1 Crown of Spain, that the mere fact of his returning to the island,

and continuing to reside till 1790, would not have deprived him of his character

and privileges as a British subject : and their Lordships are of opinion that the

facts now propounded would not, if proved, be suflicient to warrant a finding by

the assessor that such was Peter Walls’ intention ; and, therefore, that there i s no

ground for sending the case back for any further tr ial on that objection,

The onIy remaining ground of appeal is one which, though not made a t the

trial, would, if established, entitle the appellants to a reversal of the judgment

below ; namely, that the right of dower does not attach to lands in Gibraltar.

It has been argued, that as Gibraltar was a possession acquired by Great

Britain by conquest from Spain, the law of Spain, and not the law of England,

must be the criterion by which the rights of the inhabitants are to be determined,

unless it can be shown that the former law has been altered by competent authority.

It is further said that this has never been done, and that by the law of Spain the

widow is not entitled to the dower she seeks, and therefore, that the judgment i s

erroneous.

Elijo] The peculiar situation and character of Gibraltar, and the circumstanc~~

consequent upon its capture, render it difKcult to ascertain how or when the altera-

tion of its lams first took place. But it was admitted that, by some means, the law

of England had in Gibraltar been substituted in many points for the law of Spain ;

and it ifi not denied that the eldest son alone inherits real property in Gibraltar,

though by the law of Spain i t would descend to a11 the children equally; and it

seems to have beea assumed by modern textiwriters upon colonial law, that the

English, and not the Spanish law, is the law in actual force a t Gibraltar. And

their Lordships are of opinion that there i s abundant evidence before them that

this assuniption is well founded.

The first charter of justice for Gibraltar was granted in the 7th year of the reign

of George lst, and it applied to personal property only. But by a charter under

the Great Seal of Great Britain, in the 13th year of the reign of George 2d, a new

Court of Judicature was erected, and was thercby authoyized to hold pleas of what

nature or kind soever, between the in~~abitants, ‘‘ and to award and issue out war-

rants of execution under the seal of any one of the Judges for the time for putting the

complainant into possession of the houses, lands, te iwnents , or other thiitgs which

should be specifically adjudged to them.” And in a subsequent part of the same

charter it is further provided thus: ‘. But nevertheless our will is, that in all cases,

whether red or perwnaf, in which the right of us, our heirs and successors, shall

be concerned or may be affected, o r where they concern lands, tenements, or heredi-

taments, an appeal shall be allowed to us, our heirs and successors in Council, though

the value be under the sum of [151] g200.” And a subsequent clause is in these

terms, “ And further, we will that the said Court may have power to do all things

necessary for the administration of justice. But nevertheless, w e will that the laws

of 73ngland be the measure of justice between the parties.”

By a subsequent charter, made in the 26th year of the same reign, after reciting

the former charter of George l H t , fu l l power and authority is given to the Court

to hold plea of and to hear and determine in a summary way, on complaint in writ-

ing, in such manner as was directed by the former charter concerning persona1

pleas, all pleas concerning houses, land$, and tenernemts, and all other real pleas

within the town of Gibraltar and the territories thereto belonging, and all kinds

of terms, leases, and estates and interests therein.” And by a subsequent charter,

made in the 5’7th year of the reign of King George the Third, after reciting all

these three charters, the King revokes them, and erects a new Court of Judicature ;

and, adopting the language employed in the charter of the 13 Geo. 2d, declares His

606

~ E P ~ S O N ‘U. RIERA [1835] III KNUP, 152

Majesty’s ‘‘ will, that the laws of England be the measure of justiee to be adminis-

tered between the parties, as near as may be.” Can there be any reasonable doubt

that tfie purpose and object of these charters was to make the laws of England, as

far as they were a p p ~ ~ c a ~ ~ ~ e to the si tuat~on of G i ~ ~ r a l t ~ r , tie law of that place in all

~uestions of property, whetther real or personal?

But it wits further urged by the learned counsel for the appelI~~i ts? hat the ill-

struments referred to were merely charters under the Great Seal for regulating

the a d ~ i n i s t r a t ~ o n of justice, aiid that the laws of a conquered country could only

be altered by Order in Council, the existence of which i t was i~~curn~e1i t on the

respondex~t to prove. No authority, however, has [1ij$J been produced in support

of this position, which rests upon the circu~stance, that it i s said in some of the

books that the King may alter the law of a conquered country by Order in Council,

and that it is nowhere said that he may do so by charter.

But this d ~ s ~ i n c t ~ o n i s not a~luded to in Culrin’s case [7 Co. Rep. 171, or in the

s t a t e ~ e n t made by the Master of tlte Rolls, in 2 Peere ~ ~ ~ l i a ~ ~ i s , 15, or n the case of

C ~ ~ ~ ~ ~ e l ~ v. E&, Comper, 204, Lofft, 655, or that of The A ~ t o ~ ~ ~ ~ ~ ~ ~ G ~ ? ~ e r ~ ~ v.

~ ~ ~ ~ ~ a ~ ~ , 2 Merivale [143]; and the Judges speak of this power as vested in the

Crown, ~ i t h o u t any itat at ion as to the advice under which it may be exercised.

In the case of C ~ ~ ~ ~ e ~ ~ v. Eall [Cowp. 20-1; Lofft, 6551, the whole q u e s ~ i ~ n

hwned upon the legal effect of letters patent under the Great Seal; and though the

cas& was four times argued, no objection was suggested on the ground now insisted

upon; and, in delivering the judgment of the Court, Lord Mansfield declared the

letters patent void, solely on the ground that the King had, before the date of those

letters patent, by his ~ r o c l a i ~ a t i o ~ l and charter, precluded himself from the exercise

of a ~egislative authority over the island of Grenada: and it i s worthy of remark,

as e~hibit ing the no~el ty of this objection, that though the earlier p r o c ~ a n ~ a t ~ o n and

charter relied on in that case were issued expressly under the advice of the Privy

Council, that fact nowhere appears upon the face of the speoial verdict ; and t l ~ o u ~ ~

Sir ViJIiarn Grant, in the case of The ~ i ~ ~ ? ” ~ e ~ - G e ? z e ~ ~ ~ Y. ~~~~~J~~~ [a Mer. 1432,

intimates R doubt whether there had not been other acts and instruments more

clearly expresrjive of tfie King’s intention than the language of that ~ ~ , o c l a n i a t ~ o n ~

he raises no difficulty on the ground now s u g ~ ~ ~ e d , a l~houg~i the Master’s report

in that case also Cl531 omitted to state that tlte king'^ ~ ~ ~ o c I a i ~ i a t i o ~ ~ and the cliarter

of J y t i e e were issued by order of the King in Council.

A further objection was also insisted upon by the counsel for the a2pPp~llants,

that even if the law of England bad been generally introduced into Gibraltar by

competent authority, such parts of it only would be in force there as ivould be ap-

plicable to the sit‘uation and condition of the place, and that as there were no means

jii Gibral~ar for a p p o r t ~ o n ~ n ~ or barring dower, the law of dower was wholly inap-

plicable, Whether there be any such offcer in Gibraltar as a slleriE, upon whom

the duty of assigning dower would devolve, in exact analogy with our own practice,

does not appear in evidence ; I-rut if the right to dower exists, the powers given bp

the charters are quite large enough to supply the adequate remedy; and withou~

assenting to the position, that the right of a *,idow to her dower cannot exist in

any place where the means contrived in this country for Barring that right cannot

be e~ployed , it is a sufficient anstser to the objection to refer to the language of the

charters already cited, ui3der which all the powers exercised hy the courts in Eng-

land may in s ~ ~ s t a n c e he employed for e ~ e c t i n ~ all those set t Ie~ents of real pro-

perty that require the re~inquishn~ent of the v S s claini to dower.

Their Lordships are therefore of opinion, that as the charters of justice appear

to have been issued under the Great Seal, and therefore under the advice of a

known responsible minister of the Crown: and as the language plainly and ex-

plicitly declares the will af the King, that the English law shall be the measure of

justice in ~ i b r a l t a r ; that the law of England has been lawf~~lly su~)st~tuted for the

law of Spain in that place; [154] and that as there i s nothing in the nature of the

~ 1 a i n t ~ ~ ’ s claim of dower inap~~l icab~e to the s i tu~t ion of that part of the King’s

d o i ~ i ~ i o n s , that the judgment of the Court below is well founded, and s ~ l o u ~ d be

affirmed with costs.

111 KNAPP, 165 C O ~ l P E ~ S A T I ~ ~ G O ~ ~ I ~ S ~ O ~ E ~ ~ (CASE F) [I8351

md d p ~ ~ ~ ~ ~ ~ t ~ ~ ~ ~ of ; 11. PARTICULAR COLONIES, 10. G ~ ~ ~ ~ ~ ~ n ~ ; 111. APFBALS

TO PRIVY COUNCIL, 6. Practice, g. X e w ~ ~ i ~ ~ e ~ c e ; also tit. E ~ ~ ~ U T O R AND

A ~ ~ I ~ I S T ~ A l ‘ O ~ , 4%. A D I ~ ~ s ~ R A ~ K O ~ , a. ssets, 2. Wlrat fwms part of estate;

also tit. I R i ~ E R N A ~ I O ~ A I , LAW, XV. PERSONS, a. dlienuye, 1. ~ e ? ~ ~ r ~ z Prin-

ciples. See S.C. 3 St. Tr. (N.S.) 591 j and Printed Cases, Privy Council Appeals.

On point (i.) as to alienage, d~sti~iguished in In re , ~ t e ~ e ~ ~ l ~ c t ~ ~ ~ ~ e t i ~ i o ? a ,

Isnncson v. Durnlzt, 1886, 17 Q.B.D. 61 ; and see note to Dolzeguni v. Dolzegralzi,

1834-5, 3 Knapp, 93; (ii.) as to mode of alteration of law of conquered country,

see Cnmeron v, R y t e , 1835, 3 Knapp, 346 ; ~ ~ n z ~ ~ i ~ ~ n t v. Bnrrett. 1836, 1 Moo.

P.C. 75 ; and Forsyth’s Cases and ~ ~ ~ ~ i ~ ~ s on COPLB~. Lnw, p. 15 ; (ii.) as to

s u ~ ~ s t i t ~ ~ ~ ~ o n of ~ n ~ l i s ~ ~ Law, see Zpyons (Mnyor of) v. Emt fr&n Coy., 1836,

1 Moo. P.C. 175 ; ~ ~ 7 z t e ~ ~ ~ ~ y ~~~ ~0~~ of) v. ~ p ~ u ~ n nnd ;tfelboume ~ ~ o s p ~ ~ n ~

(1$~5?y A.C. 89; (iv.) a8 to a d d i t ~ o n ~ l evidence (3 Xnapp, 136), see 3 Knapp,

130 rt. $-; and ~~~~~s v. P o r r d , 1842, 4 Moo. P.C. 41.1

[I553 ~ A S E OF TNE G O ~ ~ I S S I O ~ E R S FOR C O M P E N ~ ~ ~ I O N ~ ~ D ~ R TBE

ACT FOR THE A ~ O L I T ~ O ~ OF LAVERY.

WILLLAM BTJBGE, Esq., Agent for the Island of Jamaica,-AppeZZant; against

certain of the Rules of the C O ~ ~ ~ I S S I O ~ E R S of A R B ~ ~ R A T ~ O ~ , con-

stituted and appointed under the Act for the AboIition of Slavery.

~ H . ~ ~ ~ ~ S A ~ ~ ~ O ~ Y F E ~ ~ I ~ ~ ~ ~ ~ ~ ~ ~ I C ~ , and HENRY JOHN ~ X L ~ A ~ ~

B ~ ~ ~ I ~ C ~ y - d ~ ~ e Z Z n ~ ~ ; against cerh in Bulee of the same C O ~ ~ ~

S I0 Ri E R S.

[Feb. 9th, loth, and 23d, 1835.7

One of these appeals froin the rules of the ~ o m m ~ s s i o ~ i e r ~ appointed uiider the

Act for the abolit~on of slavery in the ~ ~ ~ i t i ~ ~ domin~ons, 3 and 4 Will. IV. c. 73,

was by the agent for Jamaica, in his public capacity, on bahalf e€ all the planters

in the isIaiid; the, other was by the, private p r o ~ r ~ e t o r s of a plantation in Demerara,

E1563 They were both heard together, and one decision was made upon both of

them.

By the Act fo,r the Abolition of Slavery, 3 and 4 Will. IV. cap. 73, the sunk of

twenty millions sterling was granted by Parliament, distributab~e ~ ~ o n ~ s t the

several colonies by COmmiss~oners to be appointed for khat purpose, 8s a eompensa-

tion to the persons entitled to the services of the, ~ ~ u m ~ t t ~ slaves for the loss of

them, provided the ~ ~ ~ i s l a t u r e s of the several colonies should pass such Acts for

giving effect to it as Eis Xajesty, zvith the advice of h i s Privy Council, should

declare to be adequate and satisfactory; and it contained provisions for the trans-

riiissioii of those Acts, and the p ~ ~ b l i c a t i o ~ ~ of His ~ a j ~ s t y ’ s app~obat~on of theni in

the Gaette.

The 38th section of the Act provides for the a p p o ~ n t n ~ ~ n t of A s ~ ~ ~ ~ n t C o ~ ~ ~ i s ”

fiioners in tbe colonies, to act in aid of the c o m ~ i s ~ i o n e r s in all ~ u c h cases and in

relation to all such matters and things as should be referred to then1 by t,he Com-

missioners, and to transmit t o the Commissioners a, full statement of the several

matters which should have been given in evidence before them, and true copies of

such written evidence as should have been received by them, and thereupon the

said C ~ ~ ~ i s s i o ~ ~ e ~ s s l d I proceed to ~ d j ~ ~ d ~ c a t ~ upon the same and upon svch other

evidence, if any, as inay be laid before them.”

The 47th section of the Act prwides, ‘‘ that the said ~ o m m ~ s s i o ~ ~ e r s should also

proceed to inquire and consider of the principles accord in^ te which the compensa-

* Present: The Lord President (Lord ~ o s s l y n ~ , the Vic~Chancellor Sir Lancelot

Shadwell], Mr. Baron Parke, the Chief Judge of the Court of Adniira i ty [Sir John

Nicholl], the Chief Judge of the Court of ~ ~ a n ~ r u p ~ c y [The Hon. Thonias Erskine].

608

They arose under the following circumstances.

_-- -_I ___-.-____ _ _^I ” __--___ - .-1--_ --~-.-_I___